How To Divorce An Incarcerated Spouse

Sometimes marriage doesn’t turn out the way you planned. While there’s many hurdles that couples face during the course of marriage, criminal activity and prison time shouldn’t be one of them. But divorcing an inmate isn’t easy — your ex partner still has rights to their share of marital assets and visitation with your shared children. 

Incarceration can cause delays in processing time, meaning long legal processes like divorces can take even longer when one spouse is in jail. Finding legal representation to help manage this situation would be the best course of action. 

Grounds For Divorce In Arkansas

Individuals divorcing in the state of Arkansas must tell the judge their reason behind filing for divorce. Saying “we are no longer compatible romantically” isn’t a strong argument for divorce; the judge will want details about the circumstances that led to the dissolution of your marriage.

To prepare to meet with a divorce attorney, ask yourself: 

• What is the reason for seeking a divorce?

• Have you been living separately from your ex for the last 18 months?

Fortunately, incarceration is a valid reason to divorce. But it doesn’t make the legal process any easier. In fact, divorcing imprisoned spouses can be more complicated because the courts have to coordinate with the prison, ex spouses, and their lawyers. 

Jail time or not, spending 18 months living apart qualifies any couple for divorce in the state of Arkansas. Therefore, you can still file for divorce if your ex partner has not been incarcerated yet but is no longer living with you. 

What Will A Judge Consider Before Ruling In Divorce Cases?

During a divorce case, a judge will make decisions that impact child custody, financial accounts, properties, and alimony payments. As you can imagine, being incarcerated directly impacts all of these decisions. 

Child Custody & Support

The crime committed by the incarcerated parent will weigh heavily on the judge’s custody decisions. The residing judge will consider the best interest of the children, which typically means primary custody will go to the unconfined parent. 

In regards to child support, the imprisoned individual may be required to pay if they have a means of making money. As their former spouse, it’s worth discussing the possibilities with a divorce lawyer.

Financial Accounts & Properties

In Arkansas, everything acquired by an individual while married can be divided when a couple divorces. Joint checking accounts, owned property, debts, 401ks and other retirement savings — how do you split these fairly when one person is in prison? 

The incarcerated spouse may need to pay restitution for their crimes, which inherently affect finances that would be split in a divorce. A judge will take all this into consideration, but it’s an attorney’s job to defend their client’s interests. 

Alimony 

Even during incarceration, an individual is responsible for alimony payments. However, the majority of divorced prisoners ask the court to reconsider the financial requirements since they cannot feasibly pay large sums while in jail. 

If you file for divorce while your spouse is in prison, alimony payments are calculated with their sentencing in mind. If your ex is going to prison for life, they may not be capable of providing alimony. 

Who To Contact When Your Ex Is Incarcerated

Depending upon the charges being brought against your ex, you’ll need an attorney team familiar with criminal law and family law. A defense lawyer will understand the complexities of your ex’s situation and how it will hinder the divorce process, while a family law attorney will work towards a fair divorce settlement. 

Hickey & Hull law partners have helped residents across the state with criminal defense trials, divorce proceedings, child custody disputes, and more. Learn why our motto is “Things are about to get better,” by scheduling your initial consultation today.